Gujarat High Court Case Information System
Print
SCA/12956/2008 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12956 of 2008
=========================================================
PURSHOTAM
SADABHAI SOLANKI - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
BS BRAHMBHATT for
Petitioner(s) : 1,
MR JK SHAH, AGP for Respondent(s) : 1,
None
for Respondent(s) : 2 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 23/10/2008
ORAL
ORDER
1. By
way of this petition, the petitioner has challenged the order dated
7/10/2008 passed by the respondent authority whereby the petitioner
is put under suspension.
2. Brief
facts of the case are that the petitioner was appointed on 18/2/1980
as Talati cum mantri in the respondent department. Time and again
petitioner was transferred and at present petitioner is in-charge of
the village Mahuvana, Shivgadh and Dora situated in Kutch district.
The petitioner was suspended on 1/12/1984 because he was trapped in
one ACB Case filed against him. However, on 18/121996 he was
reinstated to his original post. The State Government had preferred
Criminal Appeal No,209 of 1997 which is admitted and pending.
Because of pendency of appeal, petitioner was not granted higher pay
scale and increments. The petitioner has made representation to his
superior to grant such benefits but the same are not yet paid.
Thereafter ultimately by order dated 7/10/2008, the petitioner was
suspended by the respondent authority against which present petition
has been filed.
3. Learned
advocate for the petitioner submitted that the impugned order is
illegal and arbitrary and mala fide. The petitioner has submitted
that the impugned order in violation of principles of natural
justice.
4. Learned
advocate for the respondent submitted that the order is just and
proper and no interference is required.
5. Heard
the learned advocates for the respective parties and perused the
record. In my view suspension is a right of an employer and in view
of serious allegations made in the order, I am of the view that it is
for the administration to decide as to what action is required to be
taken. In that view of the matter, this is not a case where exercise
of powers under Article 226 of the Constitution of India is
warranted. Malafides are alleged against the Taluka Development
Officer (TDO) but the oder is not passed by the TDO but the order is
passed by the District Development Officer (DDO).
6. This
Court is of the view that concept of bias and malafide are without
any basis in view of the decision of the Hon’ble Apex Court in the
case of Abrahim Kuruvila vs. S.C.T. Institute of Medical Sciences
& Technology and others, reported in (2005) 9 SCC 49 and in
the case of State of Panjab vs. V.K.Khanna and others, reported
in (2001) 2 SCC 330. Para-5 of the decision in the case of State of
Panjab (supra) reads as under:
?SPara-5. Whereas
fairness is synonymous with reasonableness- bias stands included
within the attributes and broader purview of the word ?Smalice??
which in common acceptation means and implies ?Sspite?? or ?Sill
will??. One redeeming feature in the matter of attributing bias or
malice and is now well settled that mere general statements will not
be sufficient for the purposes of indication of ill will. There must
be cogent evidence available on record to come to the conclusion as
to whether in fact, there was existing a bias or a mala fide move
which results in the miscarriage of justice (see in this context
Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant). In almost all
legal inquiries, ?Sintention as distinguished from motive is the
all-important factor?? and in common parlance a malicious act stands
equated with an intentional act without just cause or excuse. In the
case of Jones Bros. (Hunstanton) Ltd. v. Stevens the Court of Appeal
has stated upon reliance on the decision of Lumley v. Gye as below:
?SFor this purpose
maliciously means no more than knowingly. This was distinctly laid
down in Lumley v. Gye where Crompton, J. said that it was clear law
that a person who wrongfully and maliciously, or , which is the same
thing, with notice interrupts the relation of master and servant by
harbouring and keeping the servant after he has quitted his master
during his period of service, commits a wrongful act for which he is
responsible in law. Malice in law means the doing of a wrongful act
intentionally without just cause or excuse: Bromage v. Prosser.
‘Intentionally’ refers to the doing of the act; it does not mean that
the defendant meant to be spiteful, though sometimes, as for instance
to rebut a plea of privilege in defamation, malice in fact has to be
proved.????
7. In
the premises aforesaid, no case is made out to interfere. Petition
is therefore dismissed.
(K.S.JHAVERI,
J.)
(ila)
Top